PURCHASE AGREEMENT
This Purchase Agreement, dated as of September 9, 2003 (this
"Agreement"), is by and among Xxxxxxx X. Xxxx ("Xxxx"), Xxxxx X.
Xxxx ("Xxxxx") and B&G Partnership, Ltd., a Texas limited
partnership ("B&G," and together with Xxxx and Grace, the
"Sellers"), and the party identified on the Signature Page hereof
as the Purchaser (the "Purchaser").
WHEREAS, B&G is the record and beneficial owner of 732,063
restricted shares of Common Stock (the "Owned Shares"); and
WHEREAS, Xxxx and Xxxxx are the sole general partners of
B&G; and
WHEREAS, B&G desires to sell the Owned Shares to Purchaser
and Purchaser desires to purchase the Owned Shares on the terms
and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I
THE TRANSACTIONS
1.1 Description of the Transactions. Concurrently with the
execution and delivery of this Agreement and subject to the terms
and conditions hereof:
(a) B&G shall sell, transfer and deliver to Purchaser the Owned
Shares, free and clear of all liens, and Purchaser shall acquire
the Owned Shares from B&G. B&G shall, in connection therewith,
deliver to Purchaser a stock certificate or certificates
representing the Owned Shares, duly endorsed or along with a
stock power in the form attached hereto, whereupon Purchaser
shall own the Owned Shares, free and clear of all liens.
(b) Purchaser shall pay to B&G the sum of $475,840.95 by wire
transfer to an account identified by Seller.
1.2 Further Assurances. The parties shall, concurrently
herewith and from time to time hereafter at the request of
another party and without further consideration, execute and
deliver or cause to be executed and delivered to the other party
such further instruments of transfer, assignment, endorsement and
conveyance, and shall take or cause to be taken such other action
as reasonably requested, as may be necessary to effectively
transfer to Purchaser the Owned Shares.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers jointly and severally represent and warrant to
Purchaser as follows:
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2.1 Power; Authorization. Sellers have all requisite power and
authority to execute and deliver this Agreement, to perform fully
their respective obligations hereunder, and to consummate the
transactions contemplated hereby. The execution and delivery by
each Seller of this Agreement, and the consummation of the
transactions hereby, have been duly authorized by all requisite
action of each Seller. Each Seller has duly executed and
delivered this Agreement. This Agreement is a legal, valid and
binding obligation of each Seller, enforceable against it in
accordance with its terms, except as the same may be limited by
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting generally the enforcement of creditors'
rights and by general principles of equity.
2.2 No Conflicts. The execution, delivery and performance by
each Seller of this Agreement do not and will not conflict with
or result in a violation of or under (with or without the giving
of notice or the lapse of time or both) (a) the agreement of
limited partnership or other governing document of such Seller,
if applicable, (b) any law applicable to a Seller or any of its
respective properties or assets, (c) any contract, agreement or
other instrument applicable to Sellers or any of their respective
properties or assets, or (d) any decree, judgment, order,
statute, rule or regulation applicable to Sellers.
2.3 No Consents. No consent, approval, order, authorization
or waiver from, notice to, or declaration, registration or filing
with any governmental authority or other person is necessary in
connection with the execution, delivery or performance by the
Sellers of this Agreement or consummation of the transactions
contemplated hereby, other than filings required by the
Securities and Exchange Commission.
2.4 Litigation. There is no action, claim, suit or proceeding
pending, or to any Seller's knowledge threatened, by or against
or affecting any Seller in connection with or relating to the
transactions hereby or any action taken or to be taken in
connection herewith.
2.5 Brokers. All negotiations relating to this Agreement have
been carried on without the participation of any Person acting on
behalf of Sellers or their respective Affiliates in such manner
as to give rise to any valid claim against Purchaser for any
brokerage or finder's commission, fee or similar compensation
upon consummation of the transactions hereby.
2.6 Ownership, Valid Issuance, Transferability and
Enforceability; Capitalization. B&G owns the Owned Shares free
and clear of all liens, security interests and encumbrances of
any nature whatsoever, and such Owned Shares were duly and
validly issued (including that such issuance was made in
compliance with all applicable Laws) and are fully paid and
nonassessable with no personal liability attached to the
ownership thereof and are not be subject to any preemptive rights
or restrictions on transfer other than under applicable federal
securities laws. The Owned Shares have been continuously owned by
Seller for more than three years.
ARTICLE III
MISCELLANEOUS
3.1 Notices. All notices, requests, consents, directions, and
other instruments and communications required or permitted to be
given under this Agreement shall be in writing and shall be
deemed to have been duly given if delivered personally, if sent
by third party courier or overnight delivery service, if mailed
first-class, postage prepaid, registered or certified mail, or if
sent by telecopy, telecommunication or other similar form of
communication (with receipt confirmed), as follows:
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If to Sellers, to: Xxxxxxx X. Xxxx
00000 Xxxxx Xxxx Xxxxx
Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
with a copy (which shall
not constitute notice) to: Xxxxxxx & Xxxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
If to Purchaser, to: Micro Capital Fund
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxx X. Xxxxx
Facsimile (000) 000-0000
with a copy (which shall
not constitute notice) to: Dyke X. Xxxxxxx, P.C.
0000 Xxxx Xxxxxx, #000
Xxxxxx, Xxxxx 00000
Attn: Xxxx X Xxxxxxx
Facsimile (000)000-0000
or to such other address and to the attention of such other
person(s) or officer(s) as any party may designate by written
notice. Any notice mailed shall be deemed to have been given and
received on the third business day following the day of mailing.
3.2 Assignment. No party to this Agreement may sell, transfer,
assign, pledge, or hypothecate his or its rights, interests, or
obligations under this Agreement without the consent of the other
parties hereto.
3.3 Successors. This Agreement shall inure to the benefit of,
be binding upon, and be enforceable by the parties hereto and
their respective successors, heirs and permitted assigns.
3.4 Entire Agreement; Modification. This Agreement and the
other documents executed and delivered in connection with this
Agreement constitute the entire agreement and understanding
between the parties relating to the subject matter hereof and
thereof and supersede all prior representations, endorsements,
premises, agreements, memoranda, communications, negotiations,
discussions, understandings, and arrangements, whether oral,
written, or inferred, between the parties relating to the subject
matter hereof. This Agreement may not be modified, amended,
rescinded, canceled, altered or supplemented, in whole or in
part, except upon the execution and delivery of a written
instrument executed by the parties hereto.
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3.5 Governing Law. This Agreement shall be governed by and
construed and enforced in all respects in accordance with the
laws of the State of Texas without regard to the conflicts of
laws principles thereof. The parties agree that any litigation
directly or indirectly relating to this Agreement must be brought
before and determined by a court of competent jurisdiction within
Dallas County, Texas, and the parties hereby agree to waive any
rights to object to, and hereby agree to submit to, the
jurisdiction of such courts.
3.6 Waiver. The waiver of any breach of any term or condition
of this Agreement shall not be deemed to constitute the waiver of
any other breach of the same or any other term or condition.
3.7 Severability. If any provision of this Agreement is held
to be illegal, invalid, or unenforceable under present or future
Laws effective during the term hereof, such provision shall be
fully severable and this Agreement shall be construed and
enforced as if such illegal, invalid, or unenforceable provision
never comprised a part hereof; and the remaining provisions
hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid, or unenforceable provision or
by its severance herefrom. Furthermore, in lieu of such illegal,
invalid, or unenforceable provision, there shall be added
automatically as part of this Agreement, a provision as similar
in its terms to such illegal, invalid, or unenforceable provision
as may be possible and be legal, valid, and enforceable.
3.8 No Third Party Beneficiaries. Except to the extent a
third party is expressly given rights herein, any agreement contained,
contained, expressed or implied in this Agreement shall be only for
the benefit of the parties hereto and their respective legal
representatives, successors, heirs and permitted assigns and such
agreements shall not inure to the benefit of the obligees of any
indebtedness of any party hereto, it being the intention of the
parties hereto that no person or entity shall be deemed a third
party beneficiary of this Agreement, except to the extent a third
party is expressly given rights herein.
3.9 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
[The next following page is a signature page.]
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IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by their duly authorized representatives as of the
date first written above.
PURCHASER:
MICRO CAPITAL FUND, L.P.
By: /s/ XXXXXXXXXXX X. XXXXXXX
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Xxxxxxxxxxx X. Xxxxxxx, VP, Micro
Capital LLC
SELLERS:
B&G PARTNERSHIP, LTD.
By: /s/ XXXXXXX X. XXXX
--------------------------------
Xxxxxxx X. Xxxx, General Partner
By: /s/ GRACE A, XXXX
--------------------------------
Xxxxx X. Xxxx, General Partner
/s/ XXXXXXX X. XXXX
-----------------------------------
Xxxxxxx X. Xxxx
/s/ XXXXX X. XXXX
-----------------------------------
Xxxxx X. Xxxx
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